Charles P. Kellogg & Co. v. Turpie

• Decision Date: 30 September 1879
• Citation: 34 Am.Rep. 163,93 Ill. 265,1879 WL 8614
• Court: Illinois Supreme Court
• Parties: CHARLES P. KELLOGG & CO.v.JAMES H. TURPIE.

93 Ill. 265

1879 WL 8614 (Ill.)

34 Am.Rep. 163

CHARLES P. KELLOGG & CO.

v.JAMES H. TURPIE.

Supreme Court of Illinois.

September Term, 1879.

APPEAL from the Appellate Court of the Second District; the Hon. JOSEPH SIBLEY, presiding Justice, and the Hon. E. S. LELAND and Hon. NATHANIEL J. PILLSBURY, Justices.

Mr. STEPHEN R. MOORE, for the appellants.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of assumpsit, to recover the value of certain bills of goods purchased by the defendant of the plaintiffs on the 20th day of December, 1875, and in January and February, 1876, on a credit of four months. The suit was commenced March 1, 1876.

The declaration contains a special count setting forth, in substance, the sale of the goods to the defendant upon a credit of four months, through and on account of false and fraudulent representations made by the defendant as to his pecuniary responsibility, for the price of $1124.35, and that that was the value of the goods; that plaintiffs first learned of the false and fraudulent character of the representations on the last day of February, 1876, and that immediately thereupon they rescinded the contract of sale so made as aforesaid on credit, and demanded payment immediately of the value of the goods at the time of the purchase, which defendant refused to make.

The circuit court sustained a demurrer to the declaration, and gave judgment for the defendant. On appeal to the Appellate Court for the Second District the judgment was affirmed, and an appeal taken to this court.

The declaration clearly enough presents a case of fraud, entitling the plaintiffs to rescind the contract of sale made on a credit, and the question which is presented is whether, upon making such rescission of the contract, the plaintiffs may bring this action of assumpsit to recover what the goods were reasonably worth, or are restricted to an action in tort, of trover or replevin.

Where such a fraudulent contract is rescinded by the vendor, as it may be, the contract is treated as a nullity, and the defendant considered not as a purchaser of the goods, but as a person who had tortiously got possession of them, and the form of action in such case is in trover or replevin for the tort. But this action of assumpsit proceeds upon the ground of a contract made between the parties and existing at the time of action brought, and that the goods were rightly obtained by purchase. Now the only contract appearing by the declaration between the parties is an express contract for the sale of the goods upon credit. The time of credit had not expired when the suit was commenced, and it was prematurely brought on the contract which was actually made. Where there is an express contract the law will not imply one. It is not admissible to say there was a different implied contract, where there was an express one.

Nor can the contract be rescinded in part, and affirmed as to the residue. The plaintiffs, if they treat the transaction as a contract at all, must take the contract altogether, and be bound by its specified terms. By bringing this action, plaintiffs affirm the contract made between them and the defendant. This we believe to be the doctrine upon the subject as resting upon principle, and established by the weight of authority.

In such cases, says Chitty, in his work on Contracts, vol. 1. pp. 569-70, “The vendor must either affirm or disaffirm the contract as a whole. And therefore, where goods are fraudulently procured to be sold on credit, the vendor can not sue for the price before the credit has expired, but he must sue in tort for the value of the goods, for by declaring for the price he affirms the contract; and where there is an express contract the law will not imply any other.”

To the same effect is Story on Sales, § 446, that “Where goods have been obtained through the fraud or misrepresentation of the vendee, the vendor may either affirm the sale or rescind it and reclaim the goods. If he elect to rescind he must, as we have seen, do so within a reasonable time, and must take care to do nothing affirmatory of the contract, or his right to rescind will be lost. And in such case he should sue in trover or replevin for the goods, treating the whole contract as utterly nullified by the fraud, and he should be careful not to bring assumpsit, since, as the foundation of this action is the promise of the vendee, the contract is thereby directly affirmed, and his rights will depend upon the contract solely.” In full support of the text of these writers and the views we have expressed, are Read v. Hutchison, 3 Camp. 351; Ferguson v. Carrington, 9 B. & Cr. 59, 17 E. C. L. 330; Strutt v. Smith, 1 C., M. & R. 311; Selway v. Fogg, 5 M. & W. 83.

In Allen v. Ford, 19 Pick. 217, the same doctrine is declared, where the court say: “If the plaintiff rescinds the contract, as he would have a right to do, the defendant failing to perform the condition of sale, his proper remedy for a conversion of the property is an action of trover. And he can not waive the tort and recover the value of the goods in an action of assumpsit. In such a form of action the contract is admitted to exist at the time of the action brought, and where there is an express contract the law will not imply one.” To like effect are Delton v. Hull, 47 Md. 112; Whitlock v. Heard, 3 Rich. 88.

The decisions in New York appear to be in favor of the maintenance of such an action as the present.

In Roth v. Palmer, 27 Barb. 652, the court, speaking upon the subject of the election which the vendor has, in the case of a fraudulent purchase of goods, to sue in assumpsit rather than tort, say: “Originally, and particularly in the English courts and in Massachusetts, a distinction was attempted to be established as to the...